Patents Chilling Effect on Science

cheesedog writes "The American Association for the Advancement of Science recently conducted a survey on the effect of patenting on the sciences. The results are frightening: 1/5th or more of all research projects in the United States are being chilled by patent holders. The sheer amount of research being canceled because of licensing issues is astounding, but at the same time many of these researchers hold their own patents and therefore contribute to the problem."

Comments

So much for patents fostering innovation

[Trigun]

So what's the reason we have them again?

Re:So much for patents fostering innovation

[Anonymous Coward]

We have them because the average American wants to believe in a world where he/she can one day strike it rich by inventing some widely used product.

The problem is, the patent system doesn't really work that way, no matter how much patent supporters pretend it protects powerless inventors. In practice, a small inventor gets screwed anyway, because 1) complex ideas tend to rely on other complex ideas (giving rise to widespread cross-licensing among already powerful corporations) and 2) even with a patent, a small inventor will need incredible financing to legally enforce the patent. How does a small inventor get such incredible financing? Yep, by essentially giving the patent to a powerful corporation in return for a relative pittance.

The dream of striking it rich with a patent is a nice one, but it's more like a lottery than anything. Extremely rarely, someone wins, but most of the time even those who invest large amounts (people who actually invent/create things) lose out.

Unfortunately, people don't like letting go of dreams, even if they've been tricked into believing them; even if actual progress in arts and sciences grinds to a halt, many will happily make that sacrifice for an imaginary reward.

Re:So much for patents fostering innovation

[fireweaver]

Today, to establish monopolies on entire fields of knowledge and commerce. To make the barriers to entry by would-be competitors too high to contemplate. To parcel out, on a fee basis, knowledge and culture in driblets and drablets, with restrictions on how that knowledge or culture can be used. To ultimately licence knowledge itself, with the end result being the reinstatement of the medieval guild system.

All of this backed by the full force and power of a government that is as corrupt as the system it is backing up. That enough reason?

Welcome to the new serfdom.

Re:So much for patents fostering innovation

[Stripe7]

We have patents so our lawyers and corporations can make money suing people who actually try to create new products. Not too much of a worry, soon other countries are just going to ignore our patents. This will happen when some US patent company tries to sue some Foreign Film maker for making a movie that stepped on US patented storylines.

Monopolies are always bad

[dada21]

Don't most government-endowed monopolies have chilling unintended consequences on the markets they're supposed to protect?

Copyright gives incredible power to the top publishers (with a lock on book stores), the recording industry, and the movie distributors.

Government's monopoly on violence prevents the average person from defending their property, and use of the monopoly outside of our borders causes anger towards our citizens.

Government's monopoly on prescription drugs causes the costs to skyrocket (death sentence for the poor) and useful drugs to be delayed for years.

Government's monopoly on patent licensing is no different. The playing field is far from level. Drug companies would initially have to charge more to sell their meds, or sell through doctors groups (where generics might be contractually offlimits for those doctors). Patents don't protect bootlegs anyway, which get more pervasive as the web gets larger.

For our society to grow, we need to accept that monopolies are always bad, and only government can create them. There are no natural monopolies. The 4 or 5 times there might have been in the past I'd argue weren't meant to last, but they're gone anyway.

Re:Monopolies are always bad

[LardBrattish]

For our society to grow, we need to accept that monopolies are always bad, and only government can create them. There are no natural monopolies. The 4 or 5 times there might have been in the past I'd argue weren't meant to last, but they're gone anyway.

I agree, but governments should control certain natural monopolies for the good of the country as a whole.

Does a monopoly on telecoms infrastructure run and paid for by the government and leased to providers hurt competition? No. It helps by providing a level playing field to all companies. The government can also provide connections to rural areas that a private company would find it uneconomic to serve otherwise. If it makes a profit then tax cuts all round - which I have to say I'm a lot happier about than share dividends for some...

The same can be argued for all other basic services (Water, gas, electricity). The private sector will run a "wait until it breaks" maintenance scheme without really having to face the consequences of failure (discomfort or even death of customers). Ask some New Zealanders about the consequences of unregulated privatisation. The privatised electricity company cut back on maintenance, reported record profits & dividends for shareholders then one of the two power cables to Auckland failed & New Zealand's biggest city had rolling powercuts for weeks while it was fixed.

I'm not some crazy socialist arguing for nationalization of all property but there are just some things that are far too important to leave to the private sector that has repeatedly proved unable to provide the service.

The madness reached its peak/nadir in England when the privatised railway infrastructure monopoly (which had just come off of several years of issuing large dividends to its shareholders) went to the government begging for money because they didn't have enough to do the essential maintenance program that they were being forced to do after the latest fatal rail crash caused by poor track maintenance. Within two days of receiving the money from the government they announced another big dividend for their shareholders.

Monopolies are BAD if a company holds them (Hello M$)

Monopolies can be good if a government administers them responsibly and the alternative (private ownership) is inevitably worse.

Re:Monopolies are always bad

[Money for Nothin']

Natural monopolies can't exist without government backing them up. The usual culprits creating monopolies are licensing, regulations, specific mandates and safety requirements.

Microsoft is a natural monopoly. It got there without the "ususal culprits" you describe.

By economic definition of a "monopoly" -- which typically refers to a single producer controlling at least 75% of a given market -- and in the desktop OS market, MSFT is still a monopoly.

How does MSFT exist -- currently, as you and I write this, no less -- as a natural monopoly, in absence of government intervention? Indeed, it exists *in spite* of attempted government intervention (the DOJ lawsuit from a few years ago). A fair argument can be made (and I've done so in the past) that competition like Linux has entered the market and will destroy MSFT's stranglehold on the desktop OS market. I think that's likely in our lifetimes, despite the failed predictions of "this is the year of Linux on the desktop" we used to see on Slashdot until a couple years ago; only, I doubt it'll happen within at least the next 10 years.

Or try the diamond-mining company DeBeers (for which I think a better case for your argument of govn't protections can be made). They are currently the *world's* monopoly supplier of diamonds.

Or -- since monopoly depends on a market's scope, and since markets can change in size, the question of monopoly therefore becomes a question which may be changed solely in its scale (Murray Rothbard smartly did the same thing to illustrate the economy-wide positive effects of free trade, after all) -- how about the much smaller-scale hypothetical of the person on the only raft next to a sinking ship? In that case, the person clearly has a monopoly on the market for floating vessels with which individuals may save themselves drowning aboard a sinking ship. Such an event can occur out in the open seas -- as far away from government intervention as you'd like. It is a clear case in which government is irrelevant, yet, a natural monopoly still exists -- thus illustrating the flaw in your logic.

Such is the problem with ideological political-economy: to every ideological rule, there is a real-world exception. Life, insofar as we understand it presently, is not like software -- a single rule or set of rules does not always apply correctly (just look at govn't policies as a routine example of the failure of such simplistic thinking). There are always cases we haven't considered or accounted-for.

That isn't to say that govn't isn't responsible for many of the monopolies that have existed or continue to exist -- cable and telephone companies in the U.S. are perfect examples of that fact. The railroads of the late 1800s were another. The practice of law and medicine today are industries each gated by a single, and thus by definition, monopolistic, professional licensure organization (the ABA and AMA, respectively). Likewise, various unions gate entry into their professions, creating monopolistic suppliers of blue-collar labor. And so forth. It is beyond absurd based on history to believe that govn't is the solution to more than a small handful of problems (and in particular, preventing physical violence between two people in a fair manner - unless it's the govn't performing the violence, e.g. in the Rodney King case. Then you have the same problem as if the violence came from a private security firm in a theoretical an-cap society.).

But it is equally-ridiculous to claim -- as promoters of "anarcho-capitalism" (which is really anarchism after drawing the system out over any significant time scale, because the "capitalism" part becomes moot once society breaks down into violence - just look at what happened in New Orleans after Hurricane Katrina hit, for example: lots of anarchy and not a lot of capitalism, unless looting can be construed as capitalism now... Indeed, Adam Smith's version of "capitalism" in The Wealth of Nations called for

China and India

[xiaomonkey]

This being one of the reasons why up and coming countries like Chine and India will probably surpass their western counterparts in both science and engineering.

We live in a kleptocracy

[rsborg]

The wealthy/landed elites constantly dream up ways to make money of the backs of the innovative and hard working. In this sense, Microsoft and the RIAA Cartels pretty much symbolize the "American spirit"... from a corporation standpoint.

None of this will change unless and until we either get corporations to recognize that the US is losing it's ground due to stifling IP/Patent laws... or we vote in people who care.

Republican or Democratic, make sure your representative at least knows (and preferrably cares) about the current state of the patent system.

Oh, and donate to the EFF. I have.

Yep...

[vectorian798]

I am in a robotics research team here at UC Berkeley and we too found that often companies patent random stuff that they haven't even fully developed yet. Because patents can be overly broad (like the one on the hardware 'double-click') this can cause problems especially in cases where there is perhaps only one solution (or one cost-effective and viable one anyways) to a given problem. The solution may be blatantly obvious to the scientifically-inclined, but if someone holds a patent on it, what can you do...

I wouldn't complain as much if the patent system hired people halfway-knowledgeable or if they allowed patents only on something very specific (aka ethical to 'patent') and genuinely ingenious. But these concepts of ethics etc. are so hand-wavy that we might as well not even try to 'reform' the system, and instead just get rid of it because otherwise it will be hard to meet the standards we expect.

Perhaps another way to go at it is to have a board of scientifically-inclined folks to preside over the patent system and work at it with newer laws on what can and cannot be patented. Over time as new technologies and ways of thinking come about, such a board can continue to refine the laws. My bid for the people to serve on these boards: college professors from a mix of technical majors from various universities.

In any case, the other question is why would researchers who face this barrier file patents themselves? To do it before someone else does - it's not like prior art holds weight in today's patent system, so it is a quick solution to making sure you don't face problems in the future.

I'll leave you with that.

Re:Recent idea

[wbren]

But wouldn't a company earning large profits from the patents expand, grow, create jobs, pay more taxes, and get the wheels of the economy going?

You were going for a +5 Funny with that tax thing, right? Because where I come from, America, the larger our corporations get, the better they get at avoiding taxation.

The Patent System Is Not Bad

[MCTFB]

It is the administration of the patent system that is bad.

The U.S. Patent Office is underfunded, understaffed, and underqualified. Much of this is intentional on the part of big business and "patent companies" who profit off of a dysfunctional U.S. Patent Office not being able to do its job. The reasons things are so bad are purely intentional. Also, if a patent examiner rejects a patent, then a few phone calls are made and the patent examiner (who is more than likely some kid straight out of college) is in hot shit by his superior. So, since the patent examiners just want to get paid like everyone else, they rarely blow the whistle on companies which have a lot of lobbying influence in Washington.

Without the patent system, you would basically have a wild west business climate where the only way to protect your inventions is to hire your own thugs to deal with people who infringe on your monopoly. Of course, someone else could hire their own thugs and just steal your invention (provided they had the expertise to manage it) as well. Neither situation is good for business or a climate friendly to inventors, so that is why we have patents.

I could go on and on about why patents are necessary as well as talk about my real world experience with the system, but I think any sane person would agree patents are a necessary evil to scientific progress in business and industry. Nevertheless, the current patent system is so poorly run and so politicized that it might as well be more of a roadblock to inventors than a safeguard right now.

If you want a functioning patent system for the future, maybe you might want to write to your congressmen about how you think it would be wise to reduce social entitlement payouts to retiring old farts in the forms of medicare and social security, and put the money to better use in the U.S. Patent Office where right it is perfectly OK for a patent examiner to work a couple years for the government and then work for a "patent company" or law firm specializing in patents right after that.

Until then you get what you pay for.

Surpass yes, but lead?

[carlmenezes]

I'm an indian and have lived in India for 28 years. See, the thing is, countries like India and China learn from others' mistakes. The US has had to lead in terms of not just technology, but legislation controlling technology (patents, copyright, trademarks) and everything else associated with it (education, research, the internet). When you lead, there are no guidelines and the outcome is based on your best effort.
Throw in a free economy and lobbying into the mix and you end up where the US is today. Other developing countries can see this and analyse it and if they're wise, try to learn from it. This is what India is doing (and I assume what China is too).
The question remains however, is what will happen once these countries catch up to the US and overtake it (yes, that WILL happen, just not soon and no, I'm not trying to start a flame war). Then they will be left to their own devices and where they go from there will be based on the strengths of their governmental systems, the level of corruption at that stage, etc etc.

In a nutshell, it's hard to lead, but easy to follow.

So don't give your country too hard a time for where it is right now. You guys have done a pretty good job (with technology). Ofcourse, its not the fall that matters, but how you get up.

Peer review?

[nickyandthefuture]

As someone who works in physics research, and is concerned more with publishing papers than getting patents (although my advisor has quite a few), I'd be curious to see if something like a peer review system could work for patents. As with scientific journals, the editors (in this case, patent office personnel) can't be expected to thoroughly know every subject matter that comes their way, but it's not that difficult to find experts in the field who can point out flaws or know right away if work is fraudulent or unoriginal.

Are there any downsides to this that I'm not seeing, besides the obvious one that it will require researchers and inventors to volunteer time? I know that Physical Review Letters has a policy that the editors will automatically reject a significant percentage of submitted papers deemed obviously inappropriate for publication before sending them on for review, something similar to which would probably have to be implemented here, maybe just in the form of the current system.

Re:Recent idea (nice try)

[Stephen Samuel]

Let's say that Microsoft likes your idea and wants to .... uhm, use it. They would have at least 5 choices (in order of your probable preferences).

1. They could notice that you have a patent, and decide not to.... (right!).
2. They could license the rights from you. This is sometimes known as 'a deal with the devil'. Many a company has been burned by some wierd technicality that Microsoft places in such licensing agreements, and if they violate the agreement, you end up at option #5.
3. They could find a way around your patent (they have enough lawyers and programmers that this is a real possibility).
4. They could sue your for breaking any of their Thousands of (sometimes trivial) patents and simply litigate you into oblivion.
5. They could violate your patent (possibly also a non-disclosure agreement signed under the guise of #2) and let you decide if you want to sue them, risking a counter-suit (see #3) and scaring off investors.

Current patent law really only serves the really big companies. Unfortunately, it's the smaller companies that tend to be the source of most innovation. -- Most of Microsoft's big 'innovations' came from small companies [[ the biggest exception would be windows, which was lifted from Apple ]]

Re:Lawyers are to blame

[Just Some Guy]

But, the simple truth is, it's not the fault of lawyers. They're working within the system, getting paid by clients to do what they do.

So your stance is that legal implies acceptable? Interesting. Do you feel the same way about spammers who send from countries or states where it's legal? Loud cars in places without noise ordinances? Spitting on the street where not explicitly disallowed?

You know, we used to have something called "shame". It was the force that kept people from doing things that made the world a worse place, even if it those things weren't strictly illegal. I wish we had more of it now.

Harry Selden who?

[mortong]

Asimov had a point when he said that a decline in scientific advancement was a symptom of the decline of a society.

Re:Recent idea

[nmos]

But wouldn't a company earning large profits from the patents expand, grow, create jobs, pay more taxes, and get the wheels of the economy going?

Sure but most likely having multiple companies competing would produce the same results more effeciently, at least that's the idea behind the free market.

Ultimately an economy only grows by becoming more effecient and patents hurt effeciency in the long run. IMHO a patent system is like a credit card. Initially they both encourage growth but later as the number of existing patents (the ballance) goes up the cost of dealing with the system (interest) starts to outweigh the advantages. Remember that you not only have to pay the cost of filing your legitimate patent but also for defensive patents, patent searches, licenses for tech. you know you infringe, and litigation for tech. you end up infringing accidentally. Every dollar you have to spend on lawyers dealing with this mess is a dollar that you arn't spending making your product better and cheaper. Now consider that you are not only spending that money directly but also indirectly in the cost of every single product you buy.

The logical end game is that we all end up spending all available capital simply dealing with the patent system and none at all actually creating anything new. That just can't be a good thing.

Re:locked down

[Anonymous Coward]

for 'not directly usable' read 'not usable'. ie: locked down
and the publication requirements don't mean squat anymore (if they ever did). part of the purpose of hiring a patent lawyer to write your patent is so nobody can tell how your invention (if you have one) works by reading the patent and so it covers as many possible competing inventions as possible.

What do I do?

[trydk]

I find patents quite scary!

I invent something, let's just call it the Dribblecatcher.

I go through lots of research to make sure it is unique, not infringing on other patents and that it has all the qualities demanded of a patent.

I patent it, start production and sell a good number, almost ready to make a profit on my substantial investments ... when Big Bad Company Ltd. introduces their product, the Droolstopper, which clearly infringes on my patent.

I get my lawyer (I cannot afford more than one, so it isn't "lawyers") to write Big Bad to stop them from selling the infringing product. Their lawyers reply that they have no intention of stopping a lucrative business and that they'll rather see me in court.

Now, I could go to court, but I would only be able to sustain the expenses for a very short time and thus have no real choice but letting Big Bad go on with their business.

Then suddenly this letter drops in, "Your product, the Dribblecatcher, infringes on our patent for droplet recovery, US 1234..... Please refrain from further sales and marketing of said product and furthermore please pay us $xxxxxxx for the improper use. We reserve the right to seek damages, etc ..."

Even the best effort on my part to find the above patent has failed and my business is in shambles because of an unscrupulous, big competitor and a "hidden" patent.

What do I do? (Apart from crying myself to sleep every night.)